Foreign law

Foreign law is law referenced or cited by a court that comes from a country other than that in which the court sits. Foreign law is usually not binding on the court siting it, and citation to foreign law as persuasive can be controversial. However, in some circumstances, a court may be called upon to determine the meaning of a foreign statute, such as when one is incorporated into the language of a contract before the court.

Contents

Do you think things outside the United States cannot be relevant to an understanding of how to apply the American Constitution? That's what's at issue. What is at issue is the extent to which you might learn from other places facts that would help you apply the Constitution of the United States. And in today's world, as I've said, where experiences are becoming more and more similar, I think that there is often -- not a lot, not always -- but in a finite number of instances there is something to learn about how to interpret this document.

But that's the document, I'm interpreting that document. And to think that one might learn from other countries in how best to apply this American Constitution is something I think -- I've been reading about the Founding Fathers, and I think Franklin and Hamilton and Jefferson and Madison and maybe even George Washington all would have thought that we, on occasion at least, can learn something about our country and our law and our document from what happens elsewhere.

I don't know what it means to express confidence that judges will do what they ought to do, after having read the foreign law. My problem is I don't know what they ought to do. What is it that they ought to do? You have to ask yourselves, Why is it that foreign law would be relevant to what an American judge does when he interprets -- interprets, not writes -- I mean, the Founders used a lot of foreign law. If you read the Federalist Papers, it's full of discussions of the Swiss system, German system. It's full of that. It is very useful in devising a constitution. But why is it useful in interpreting one?

If you have that philosophy, obviously foreign law is irrelevant with one exception: Old English law, because phrases like "due process," the "right of confrontation" and things of that sort were all taken from English law. So the reality is I use foreign law more than anybody on the Court. But it's all old English law.

Quotes reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 93-94.

The sentences of foreign Courts have always some degree of regard paid to them by the Courts of justice here: and it is very right that an attention should be paid to them, as far as they ought to have weight in the case depending.

The Judge has not organs to know and to deal with the text of the foreign law, and therefore requires the assistance of a foreign lawyer who knows how to interpret it.

Lord Brougham, Sussex Peerage Case (1844), 11 CI. & F. 115.

To learn what the laws of a country are, is not the work of a day even in pacific times, and to persons accustomed to legal enquiries.

Lord Stowell, Raiding v. Smith (1821), 1 St. Tr. (N. S.) 1062.

It is every day's practice with us to decide cases which turn upon the laws of foreign countries, or the laws administered in Courts of peculiar jurisdiction in this country. Of this we have no judicial knowledge; but we acquire the necessary knowledge by evidence.

Coleridge, J., Stockdale v. Hansard (1837), 3 St. Tr. (N. S.) 932.

Unless Parliament has conferred upon the Court that power in language which is unmistakable, the Court is not to assume that Parliament intended to do that which so seriously affect foreigners who are not resident here, and might give offence to foreign Governments. Unless Parliament has used such plain terms as show that they really intended us to do that, we ought not to do it.

Quotes reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 12-13.

We should treat with great respect the opinion of eminent American lawyers on points which arise before us, but the practice, which seems to be increasing, of quoting American decisions as authorities, in the same way as if they were decisions of our own Courts, is wrong. Among other things it involves an inquiry, which often is not an easy one, whether the law of America on the subject in which the point arises is the same as our own.

Decisions in the American Courts are entitled to great respect, but are not binding here; and there are many circumstances affecting questions arising between the laws of different States which may or may not be applicable to questions arising here.

To us the judgments of Courts in the United States are merely what our decisions have been to them. To us they are merely the opinions of eminent and learned men on a question of law, which is common to them and to us. Eminent Judges have given their opinion one way, and other eminent Judges have given their opinion another way.

I need hardly say that I am always anxious to hear if there be any American decisions bearing upon the question before me, not because they are binding authorities upon me, but in order that I may get the very assistance which I have over and over again derived from the decisions of accomplished Judges, who are dealing with what is very much the same law as our own.

Brett, L.J., The Queen v. Castro (1880), L. R. 5 Q. B. D. 616.

Although American decisions are not binding on us in this country, I have always found those on insurance law to be based on sound reasoning and to be such as ought to be carefully considered by us and with an earnest desire to endeavour to agree with them.

Brett, L.J., Cory v. Burr (1882), L. R. 9 Q. B. D. i69.

Although the decisions of the American Courts are of course not binding on us, yet the sound and enlightened views of American lawyers in the administration and development of the law—a law, except so far as altered by statutory enactment, derived from a common source with our own—entitle their decisions to the utmost respect and confidence on our part.